Democrat Senator says that furloughed federal workers aren’t concerned with Trump’s State of the Union address
Virginia Democrat Sen. Mark Warner says that the president should agree to open the government for a limited amount of time and then negotiate a border security deal.
This is a rush transcript from "Your World," January 23, 2019. This copy may not be in its final form and may be updated.
NEIL CAVUTO, HOST: All right, you have been listening to the president of the United States.
Thirty-three days into a government shutdown, the State of the Union speech is down. It's not going to happen, at least in the House of Representatives.
Welcome, everybody. I'm Neil Cavuto, and this is “Your World.”
We have never seen something like this in American history. We have seen a State of the Union speech that was delayed because of the Challenger disaster when Ronald Reagan was president in 1986, but no one was denying him the opportunity eventually to talk to the American people. So there is no precedent for what is unfolding here before us.
A president denied by the speaker the House to speak in the House of Representatives, in the well of the House, as other presidents have. She arguing, of course, the government is shut down. Until it's open, then there will be no address.
The president complying with that, but hinting, hinting of an alternative that could be in the works. We just don't know.
This much, we do. We are in uncharted territory, my friends.
And doesn't John Roberts know it at the White House?
Hey, John.
JOHN ROBERTS, WHITE HOUSE CORRESPONDENT: This has been two years of a presidency of precedents. And today was no different.
The president describing this in pretty stark terms, saying it was a horrible precedent, a sad thing for the country, then at the very end there calling it a disgrace, saying that he will have a response in due course.
Nancy Pelosi has said they won't have this concurrent resolution for the president to use the House of Representatives to give the State of the Union until government is open.
But I would think, Neil, that even if the government were to be open in the next few days, they couldn't find a -- quote -- "mutually agreeable date" that would put it back on track for Tuesday. So it really does sound like a State of the Union Tuesday is off, which means now that the White House is likely going to go to plan B, because they have said that the president is going to give an address, whether it be in Congress or whether it be somewhere else, to the American people on the 29th.
I have heard that they have discussed several locations outside of Washington, D.C. So it looks like, at this moment, they will probably start the train rolling on the plan B.
But I have got to tell you, when we saw this letter from the president to Nancy Pelosi earlier today, I thought to myself, here comes the strategy to call her out, put the ball deep into her court, then see how she responds.
The president in his letter to Nancy Pelosi saying, look, your original concerns about security are not a concern, so I will see you on Tuesday night, to which she only had two options. One was to say, OK, we will see you on Tuesday night, we will have the State of the Union, or, B, find some sort of parliamentary way of saying, we're not going to invite you.
So now the president has the political victory of saying the speaker of the House has for the very first time in this nation's history canceled the State of the Union address. And I think he believes he can get a lot of political mileage out of this -- Neil.
CAVUTO: Amazing.
John Roberts, thank you very, very much.
To Capitol Hill right now, where Mike Emanuel is sort of going through all this.
Mike, I guess it is a given, then, that a speaker of the House, Nancy Pelosi, does have the power to do this?
MIKE EMANUEL, POLITICAL CORRESPONDENT: Neil, no question about that.
You need a concurrent resolution between the House and the Senate to invite the president to deliver the State of the Union address. Most years, that is just a formality. This time, of course, nothing is usual at this stage.
And so after letters going back and forth between the White House and the speaker's office, this afternoon, Speaker Nancy Pelosi explained why, in her view, Tuesday night is not the right time for the State of the Union.
(BEGIN VIDEO CLIP)
REP. NANCY PELOSI, D-CALIF., SPEAKER OF THE HOUSE: Since government is shut down, we do not -- let's work together on a mutually agreeable date when we can welcome you to the Capitol to deliver a State of the Union address.
Government is still shut down. I still make the offer. Let's work on a mutually agreeable date, as our original date was mutually agreeable, so that we can welcome him properly.
(END VIDEO CLIP)
EMANUEL: Clearly, the speaker is trying to put pressure on President Trump to reopen the government.
Today, a leading question Senate Republican said he's getting the sense that 33 days into this standoff that rank-and-file members are eager to cut a deal.
(BEGIN VIDEO CLIP)
SEN. ROY BLUNT, R-MO: I think there's clearly some movement beginning. We have been in the place where I think both sides thought they were winning.
I think we're getting to the place where both sides think they're losing in terms of what the American people expect them to do.
(END VIDEO CLIP)
EMANUEL: But there are many sources here on Capitol Hill who say pulling the invitation from the president just adds to the toxicity up here, not ideal for getting a deal -- Neil.
CAVUTO: Mike, if the president opts for another location for a State of the Union address, I dare think few Democrats would go to that location to hear it.
EMANUEL: I think you're absolutely right, particularly in this environment.
You get a sense that both bases are kind of looking at their members to see whether you have some spine or not. And so my guess is, if the president were to go off-campus somewhere, you would not see a whole lot of Democrats going to listen. Perhaps they would be watching you, Neil, to see what the speech is all about.
CAVUTO: Wouldn't that be fun?
One quick dumb question. Is there any chance -- and, obviously, since you need sort of a joint, you know, invite, that it just flips over to the Senate side?
EMANUEL: Well, there has been discussion about that. But there's also some procedural paperwork you have to go through for that.
CAVUTO: Right.
EMANUEL: And the clock is running. The Senate tomorrow is going to vote on two different measures in terms of government funding. And so things tend to not move very quickly on the Senate side of the Capitol, unless there's 100 percent agreement on doing something, Neil.
CAVUTO: Mike, thank you very, very much, Mike Emanuel.
EMANUEL: You bet.
CAVUTO: Let's go to Ohio Republican Senator Rob Portman.
He has tried to find a middle ground on this to get those government doors open, to avoid just the thing we're looking at right now, a canceled the State of the Union speech, at least in the well of the House.
Senator, very good to have you. Thanks for coming.
SEN. ROB PORTMAN, R-OH: Neil, thanks for having me on again.
CAVUTO: What do you think of this?
PORTMAN: I think it's childish.
It just escalates the partisanship we have already got in this town. And it's become a tit for tat thing too. So then the president cancels her airplane to go see the troops.
You know, we have got to all take a step back here and get back to actually doing the people's business.
CAVUTO: But you're not, right? You're not.
PORTMAN: Well...
CAVUTO: So I'm wondering what happens.
And I know we have these two votes two in the Senate.
PORTMAN: Yes.
CAVUTO: A Democratic measure, a Republican measure, likely neither to get the 60 votes needed. So, where do we go with this?
PORTMAN: Well, I think what's going to happen is, the president's proposal will get pretty much all Republicans, including me. It's a good proposal.
The president has put forward a plan that not only has the new barriers along the border that he wants, but it also has many of the priorities that the Democrats want in terms of border security. And it has this expansion of the DACA and the TPS group that the Democrats have been calling for.
CAVUTO: Right.
PORTMAN: So it really is an olive branch, and it's an opportunity for us to find some common ground.
Tomorrow, we will probably sort of have a shirts-and-skins vote. But my hope is that there will be some amendments offered that will be bipartisan. I'm working on that, as you indicated earlier. I'm meeting this afternoon with a bunch of Democrats and Republicans, a bunch of us who realize this is not good for anybody.
It's not good for the economy. It's certainly not good for the taxpayers. And it's not good for the families who are affected, the federal workers and their families.
CAVUTO: Who was in that group, then, Senator, with whom you met?
PORTMAN: Well, it's -- it's a lot of members who have been public.
So I can say some of their names. Tim Kaine, for instance, from Virginia has been a leader on dealing with this DACA issue and the TPS issue, the sort of people that have a protected status right now.
(CROSSTALK)
PORTMAN: On our side, Lindsey Graham has been very involved. So has Lamar Alexander and others.
So it's been just a group of members that have said, it's time for us to actually figure out how to find a way forward to get out of this mess. Shutdowns don't make sense.
But the president's proposal on the border is very reasonable. What he's talking about is not 2,000 miles of a cement wall. In fact, he was never talking about that. He's talking about in his latest proposal 234 miles of barriers, including fencing for people, including some barriers for vehicles and, yes, including some steel barriers he's talked about that are pretty substantial.
But it's in the areas of the border where everybody agrees it's needed. It's based on a plan that experts put together, saying, what are the top 10 priorities for the border, starting with Texas, where you have only got 100 miles of fence, despite the fact that it's 1,200 miles of the 2,000-mile border?
CAVUTO: Right.
PORTMAN: So, I think it's a reasonable plan.
CAVUTO: So, you feel that the president has made enough overtures that Democrats should respond. They heard funding for a wall and said no, even though the president's counter was security.
And they said security. And they were both in agreement on that, but the wall was a fixation. So words mean everything, apparently.
PORTMAN: Words do means everything.
CAVUTO: Let me get a sense from you.
PORTMAN: Let me just say...
(CROSSTALK)
CAVUTO: How long is it that -- the issue with the wall, they were open, Democrats, apparently said, to the $5 billion-plus for border security, but not a wall.
PORTMAN: Yes.
CAVUTO: How -- what's the distinction?
Well, first of all, the president doesn't have a cement wall in his plan. What he has is, again...
(CROSSTALK)
CAVUTO: Well, he has the word wall.
(CROSSTALK)
PORTMAN: ... 234 -- well, it says barriers in the request that he made -- 234 miles, not 2,000 miles.
And he's doing it consistent with a plan that the Customs and Border Protection people have put forward that has been involved in both of the last appropriations bills, last year's bill and this bill, on a bipartisan basis, who said this plan makes sense. So, that's where we are.
CAVUTO: No, no, you're right.
But let's be clear then, Senator. He calls it a barrier. You have called it a barrier. Others have called it security at the border.
If he avoids the term wall, apparently, which sticks in the craw of a lot of Democrats, and, to your point, the same Democrats who voted for this earlier and under Barack Obama at least twice, but, having said that, do you think that would get the monkey off everyone's back, something as simple as semantics?
PORTMAN: It would help. It would help, because, right now, we're talking past each other.
I mean, when you hear what the Democrats are saying, how they're characterizing the president's proposal, it's not accurate.
But, also, let's be honest. The way the president is characterizing it sometimes makes it sound like it's a wall all the way across the border. And it's not .
CAVUTO: But do you regret that the president -- it's easy to play Monday- morning quarterback, sir, and I understand that -- but that attaching funding for the government, in other words, attaching this to a potential shutdown if he didn't get his way, was the right way to go, that this has now set the stage that simply won't end?
PORTMAN: Well, let me say something first about your previous comment.
The president has used the word barrier repeatedly, and he has said repeatedly it's not a cement wall anymore. Now, at other times, he has used the word wall. So he has sort of said both. And people have chosen...
CAVUTO: Well, he might have changed it from cement to steel, but he was often using wall. And through the campaign, we ran just a few bites where wall came up.
(CROSSTALK)
PORTMAN: Right. Right.
CAVUTO: You're quite right, though. He has shifted in that position. He had shown a willingness to do that.
PORTMAN: He has shifted.
CAVUTO: But the Democrats are still saying, wall, wall, wall, we're not going to do something with a wall. So how do you get around that?
PORTMAN: Yes. Yes. Well, I think you have an honest conversation where the facts are presented, which is that we do have an increase in people crossing the border. In the last two months of last year, we had more people crossing, actually twice as many people as the year before.
We had a 50 percent increase in kids and family. So, we do have an issue on the border that has to be addressed. He's right. The drug issue is very real. It's crystal meth, it's heroin. It is coming across the Mexican border.
And we also have issues in human trafficking, women and children being traffic increasingly. So there is -- there is a crisis on the border. I don't think you can avoid saying that. And we have now a proposal that is a reasonable proposal.
Do Democrats have some changes they would like to make? Yes. Let's make those changes. I think the president would be OK with that. But in the meantime, let's do open government.
And this is where -- you and I have talked about this before -- I never believed that shutting down government provided leverage. One, I think it's a bad idea to shut down government. The taxpayer ends up losing. Families of workers end up losing. The economy ends up getting hit, so it really doesn't make sense.
I don't think it provides leverage. But what I do think is, the president has got a proposal that needs to be taken seriously.
CAVUTO: As you know, sir, I'd be remiss, but you sit on Foreign Relations.
Venezuela is erupting into a civil and violent war at that. President Nicolas Maduro has broken off relations with the United States, will not recognize the U.S. government. We have urged our personnel there to get out of there.
All this as Juan Guaido, the challenger, is being recognized by us and now the Canadians, we're told the Brits, as the legitimate leader of Venezuela. They want interim elections, but it is mass confusion in a country that is seeing inflation run amok. And it's getting worse.
What do you think we should do?
PORTMAN: It's getting worse. It's a tragic situation.
You have millions of Venezuelans who are now fleeing the country, including going into some of our allied countries like Colombia and creating enormous challenges there, somewhat comparable to what you see in the Middle East with regard to Syrian refugees going into Europe and other places.
So this is a huge problem, not just for Venezuela and the people of Venezuela, who are bearing the brunt of this, but also for other countries in the region.
CAVUTO: Well, President Trump has recognized and would recognize Juan Guaido as the legitimate interim president while they sort this out.
But if there is violence here, Nicolas Maduro, who is seen even among Venezuelans now as not the legitimate ruler of Venezuela, and he fights this, and violence escalates there...
PORTMAN: Right.
CAVUTO: ... should American personnel be involved there to support Mr. Guaido?
PORTMAN: Well, I think we should be involved, but only as part of a multinational effort.
And, by the way, the countries in the region all agree with us. I mean, they have no allies left to speak of. And, increasingly, countries are saying, why don't we come together as a group of Latin American and North American countries to address this issue?
And that's the right way to do it. So I think we need to be careful not to do it unilaterally. But I think, in conjunction with the other countries, the so-called OAS countries, we should definitely be taking more actions.
CAVUTO: But they're not doing anything, right?
And I understand the trepidation on our part and those in the region from Colombia, Ecuador, everyone else, but there will likely be a lot of violence, as you know, beyond those kind of incidents for which Maduro is well known, killing a lot of political enemies, journalists, you name it.
If it escalates to that, Senator, do you think or would you advise the president of the United States, we must do something?
PORTMAN: It's something we should look at.
But, again, Neil, I would want to do it on a multilateral basis. We have a lot of support in the region for this. The U.N. ought to be more involved. Other than Cuba, nobody's really supporting Maduro. And so we have him isolated. And we ought to take advantage of that.
CAVUTO: All right, Senator, thank you very much. I know you have a crazy schedule.
PORTMAN: Thanks, Neil.
CAVUTO: We do appreciate it.
PORTMAN: Thanks for having me on.
CAVUTO: Other political developments.
Michael Cohen, remember when he was going to be testifying to Congress next month, it was all set to go? And then he canceled, apparently ongoing threats, he says and his lawyer says, from President Trump and those around him.
Now what?
After this.
(COMMERCIAL BREAK) (BEGIN VIDEO CLIP)
REP. ELIJAH CUMMINGS, D-MD: I promise you that we will hear from Mr. Cohen.
Now, we will make those determinations soon. And we will let you know how we plan to proceed. But we will get the testimony, as sure as night becomes day and day becomes night.
(END VIDEO CLIP)
CAVUTO: And Elijah Cummings, who runs the House Oversight Committee, before which Donald Trump's former lawyer Michael Cohen was to appear next month, in what was going to be like pay-per-view testimony that the world was going to be fixated on.
Cohen and his lawyers opting not to do this, saying essentially that they have been facing threats from President Trump and others in his circle, and they thought the better part of valor was to put it off.
FOX News' senior judicial analyst Judge Andrew Napolitano on all of this.
What did you think?
ANDREW NAPOLITANO, JUDICIAL ANALYST: Well, I mean, the testimony was to have been limited anyway, because Lanny Davis, whom we all know, who's representing Michael Cohen, said he doesn't want to talk about ongoing investigations in which he's participating with special counsel.
I don't think he's participating in anything with special counsel. He is getting ready to go to jail. The New York Times this morning said he's even requesting a certain jail which is known for its kosher food, believe it or not, and it's not very far from New York City.
However, he has made, again, very serious allegations. And the allegations are that: I was threatened by the president of the United States.
Now, there are threats and there are threats. Is this a threat that an objective neutral person would consider to be a threat? Did Michael Cohen consider this to be a threat?
CAVUTO: What were the threats, when he his family or what?
NAPOLITANO: Comments that the president made in a tweet about Mrs. Cohen's father -- that is, Michael's father-in-law, and whether he should be viewed by the DOJ as if he were in organized crime.
And I'm trying to be sort of charitable in characterizing what the president said.
CAVUTO: See, I wouldn't have characterized it the way you did.
(LAUGHTER)
CAVUTO: But that's right.
NAPOLITANO: He has also accused the president's lawyer, who has been a little off the rails lately, and we also know, Mayor Giuliani, Rudy Giuliani, of threatening him.
I don't know of what he says those threats consist.
CAVUTO: But why would that affect your testimony before a congressional committee?
NAPOLITANO: I guess he wants to convey the impression, whether real or not, that he is fearful for his own safety or the safety of members of his family.
CAVUTO: Would this change any potential sentencing for him?
NAPOLITANO: I don't think it would. And even though you just ran a...
CAVUTO: Would it ignite sympathy for him?
NAPOLITANO: It might.
But you just ran a clip from Elijah Cummings, the chair of the committee, who is very determined and has the votes to do this, but what he doesn't have is a lot of time. The question, is the Bureau of Prisons going to delay his reporting date to give Congress time to subpoena him? Absolutely not.
CAVUTO: Yes.
NAPOLITANO: I don't know what -- I don't remember what the supporting -- the reporting date is. I believe it's in early March. So there's about a month-and-a-half to go.
CAVUTO: Can an incarcerated person be put before a committee?
NAPOLITANO: No.
(CROSSTALK)
CAVUTO: Congress could go and...
(CROSSTALK)
NAPOLITANO: To him.
CAVUTO: But it wouldn't be televised.
NAPOLITANO: But there's 50 people on this committee. This is not what they want.
They want television. They want their members to get their 15 minutes of fame, and they want explosive testimony from him about the president. They're not going to get that if he's in jail.
CAVUTO: Could I switch gears with you and on this whole back and forth over the State of the Union?
Nancy Pelosi saying, no, you can't, the president then in frustration saying, all right, I won't. It's canceled. Before the House, it is, but obviously opting for maybe some alternatives. We don't know the details of that.
What do you think of all of this? Can Nancy Pelosi do what she did?
NAPOLITANO: Yes, but I wish she wouldn't. I wish she would respect the office, whether she disagrees with the tactics employed by the current occupant of the office.
CAVUTO: She says, the government is not functioning, this would -- address can't go on.
NAPOLITANO: I mean, I understand her argument. I understand what he's doing. He likes to play hardball in negotiations. She likes to play hardball in negotiations.
I don't think this moves the ball forward. I don't think it shows adequate respect by him for the House of Representatives, by her for the presidency.
But the technical answer to your question is, yes, she can do it. It requires a majority vote of the House for the president to speak at the House chamber. And she controls whether or not something comes up for a vote. So if she says, we're not going to vote on it, then the vote is not happening
CAVUTO: And it wouldn't necessarily happen in the Senate either?
NAPOLITANO: He could speak in the Senate, but it's a very small chamber, and it wouldn't be the optics that he wants.
I don't know if Democrats would even come.
CAVUTO: Yes, we were raising that before.
Judge, thank you very, very much.
NAPOLITANO: You're welcome.
CAVUTO: What a mess.
Judge Andrew Napolitano -- not the judge, by the way, not the judge.
(LAUGHTER)
NAPOLITANO: Thank you, Neil.
CAVUTO: Have you guys heard about this, about this drone scare at Newark Liberty International Airport?
If this sounds familiar, think London, think JFK, think a host of other smaller airports around the world, drones, but this one stopped traffic in and out of the airport for a while and caused a lot of backed-up automobile traffic going into and out of the airport. What the heck is going on here?
After this.
(COMMERCIAL BREAK)
CAVUTO: Can you sue the NFL for a bad call? Some New Orleans Saints fans are certainly hoping so, and they say they do have a prayer. Do they?
After this.
(COMMERCIAL BREAK)
CAVUTO: This is unusual, not the drone thing, but that it's happening increasingly around airspace at some of the nation's busiest airports thing.
The latest, at Newark's Liberty International Airport, where a number of flights were grounded, as they were just trying to find out exactly how many of these things are out there.
David Lee Miller with more -- hey, David.
DAVID LEE MILLER, CORRESPONDENT: Hi, Neil.
First, let's start with the good news. It's business as usual this evening at Newark Liberty International Airport, this after two pilots coming in for a landing spotted a drone. One of the pilots said the drone was about 30 feet from his aircraft.
Take a look today inside Terminal B. And you can see for yourself that the departures and arrivals appear to be taking place uneventfully. But it was a very different situation last night. All incoming flights for about 30 minutes were prevented from landing and had to circle. A number of them were diverted to other airports.
And flights still on the ground at other airports or heading to Newark were temporarily halted, resulting in delays rippling through the system. Some flights, though, from Newark, the flights that were taking off, were not affected. That's because they used a different flight path.
Now, a statement from the FAA reads in part: "At approximately 5:00 p.m., we received two reports from incoming flights into Newark that a drone was sighted at about 3,500 feet above Teterboro, New Jersey. At that point, flights arriving into Newark were held for a short duration."
And, as you mentioned, this is a story that is all too familiar. During 2017 -- that is the year for which we have the most recent statistics -- there were more than 2,000 such sightings in the United States alone. Not only are these occurrences dangerous, but they can be very costly.
You might recall that just before Christmas, more than 1,000 flights to Gatwick Airport just outside of London were canceled because of multiple drone sightings. That incident cost the airlines an estimated $60 million- plus.
Now, these events, these incidents can also be very costly for the perpetrators themselves. Here in the United States, they could face fines up to $15,000, that in addition to criminal penalties.
I should say, Neil, that the Trump administration says it is keenly aware of the issue of drone safety and the air traffic system, and that the Department of Transportation is working on a number of proposals to do -- to address what is now a growing problem -- Neil.
CAVUTO: Yes, that's scary stuff. All right, thank you, my friend, very, very much.
You know, all this talk about a top rate of 70 percent have a lot of people saying it's never going to happen, never going to happen. We used to have it happen a lot. In fact, it used to be a lot higher than that. Says who? The media called to see it that way -- after this.
(COMMERCIAL BREAK)
CAVUTO: It's not just Alexandria Ocasio-Cortez. It's Kamala Harris.
It's a host of other Democratic announced and not-yet-announced Democrats who are seeking the White House and others who are saying, you know what? We have to rejigger this tax code. We have to hike taxes on the rich, not necessarily to 70 percent at the top end, but hike them just the same.
Just the new guy coming in to take over the House Budget Committee has talked about raising the corporate tax rate from 21 percent to 28 percent, experimenting with the possibility of raising taxes on the upper income as well.
You add it all up, there's a lot of focus on making sure those taxes move up.
To Deke Digital CEO Dave Maney on this.
Dave, how seriously do you take this? It was serious enough, I noticed, in Davos with a lot of these big money managers, saying, unlikely though it is to happen with just a Democratic House and the other two branches of government under firm Republican control, it is setting the table for 2020. What do you think?
DAVE MANEY, DEKE DIGITAL: It's absolutely setting the table. That's that's exactly right, Neil.
And I think that I -- do I take it seriously? You bet I take it seriously. I think that the -- I think that there are all sorts of motivations for a Democratic Party to try to push that tax slider up just as high as it will go.
And it's a core and fundamental philosophical way of looking at the world. Their view is that all roads should lead through the government and that tribute should be paid to those in the control of that government.
And when you take 70 percent of the marginal dollar that's made in America, then guess what? You have to go do business with the government. You have to ask favor from the government. You have to ask for ways to avoid paying that tax. And all that leads to, in my opinion, Democratic campaign coffers.
CAVUTO: Well, the bottom line is, it's more popular than people are letting on.
Obviously, with the Democratic base, it's one thing, but it is interesting to note that -- and to be fair to the congresswoman, she talks about the 70 percent rate kicking in over $10 million. But the trend is the trend.
And one of the things that has come up is this idea that it would forcibly lower the gap between the rich and the poor. In fact, there was a very otherwise well-written column in Bloomberg today talking about the wisdom of that and that was the intention of our founders.
And I'm thinking, I don't know if that was the intention of our founders, but very smart media folks who are saying, not a bad idea.
MANEY: Look, it obviously wasn't the intention of our founders, because the income tax kicked in, in, what, Woodrow Wilson's...
CAVUTO: We didn't have a tax code, yes.
MANEY: Yes, Woodrow Wilson's administration.
So any notion that the founding fathers somehow sought out income equality, when in fact they were allowing slavery, is laughable. So there's no anchor there.
Is it a bad idea to have giant income inequality? I don't know about income. I know that giant wealth disparity causes problems. As you or I or anyone who's traveled to any Third World country can tell you, there's a nice lifestyle available to the wealthy, but they're living behind armed guards.
So it's not -- nobody thinks that having poor people or people who need to resort to violence to make a living is a good idea. But that's a very different thing from squelching the exact kind of economic initiative, the exact kind of innovation, the exact kind of investment that you need at a technological turning point moment like this.
It's economic idiocy. And you have -- and so you have got to look behind. If it doesn't make any economic sense, and they know it doesn't make any economic sense, then you have got to sort of say, so why are you guys really doing this?
CAVUTO: Someone must be in that 70 percent bracket. That's all I can say.
Dave, thank you, my friend.
(LAUGHTER)
CAVUTO: Always good seeing you.
We don't know that. We don't know that.
We do know this. New Orleans Saints fans are still not the better of that game, of that interference, and now of not being in the Super Bowl. And now some of them are suing. They want a do-over -- after this.
(COMMERCIAL BREAK) CAVUTO: All right, the Saints are stewing. They don't like the idea that they lost a chance to appear in the big game because of a bad call.
And now that a lot of their fans are making the point. they're going right up to the NFL, some advocating, how about a do-over on this?
Sports agent Doug Eldridge, conservative commentator and Patriots fan Ashley Pratte -- she just had to mention that.
(LAUGHTER)
ASHLEY PRATTE, POLITICAL COMMENTATOR: Had to.
CAVUTO: And Internet radio sensation Mike Gunzelman.
A do-over, Gunz, what do you think?
MIKE GUNZELMAN, INTERNET RADIO HOST: Oh, come on. Absolutely not.
Listen, I feel the New Orleans Saints' fans, their pain, for sure, because it's week in and week out that this is almost deliberate negligence from these NFL referees, Neil. They are blowing these calls, whether it was the Eagles a couple weeks ago, or the Saints and the Steelers, last week.
This is a joke, but the bottom line is, Roger Goodell, the commissioner, doesn't care. The rating was 44.1 million people watched this game. People, unless you're from New Orleans, are not going to not watch the Super Bowl. Goodell doesn't care because it's all about the money.
But the referees are a joke this year.
CAVUTO: Ashley, what do you think?
PRATTE: Well, Saints fans, you can be Patriots fans, because obviously you don't want the Rams to win.
But in that regard too, I'm just going to throw out there for a second that what do these fans have to lose by suing? Nothing. Their team already lost. And why are these rules in the NFL rule book if they're not going to be applicable at any point in time?
And the fact that the league admitted guilt by calling coach Payton and saying that that was a blown call, it was clearly pass interference, it was a missed call, I'm pretty sure that these fans do have a leg to stand on here and call on the NFL to do something.
Now, with all of the crises that the NFL has faced, you would think that they would just maybe not want to mess with New Orleans on this one. And I, as a Patriots fan, can admit, I do not want to play the Saints in the Super Bowl. I don't want to, but they should be the team there.
(CROSSTALK)
CAVUTO: So, Doug Eldridge, what are the rules on this? What are the rules on this?
Can -- the one idea was play the game from the point where this all happened, so the last minute-and-a-half or whatever it was. Others say, no, no, the whole game. But that's unrealistic, isn't it?
DOUG ELDRIDGE, DLE AGENCY: Well, in the past, you and I have talked about the issues that are at the intersection of the court of law and the court of public opinion.
To Saints fans, this was an egregious harm that robbed them of the opportunity to play in the big game. But that's the court of public opinion, right? And, unfortunately, in the court of law, the precedent has been established that failure to meet a fan's expectation is not an actionable offense.
So where I would disagree -- or, rather, clarify what Ashley said...
CAVUTO: Well, what are the rules on this? The rules, I understand, are clear that the NFL would take action on something like this, but they're -- maybe they're not so clear.
What would be the approach they would take?
(CROSSTALK)
ELDRIDGE: With limitation.
Rule 17, Section 2, Article 1 provides essentially three criteria...
(CROSSTALK)
CAVUTO: Right.
ELDRIDGE: Three criteria for essentially what we would call a force majeure clause, or an act of God.
And that's an action by club on the field, non-participant fan interference -- a crazy streaker jumps on the field, something like that -- or a calamity, a ceiling tile dislodges.
The problem comes in the next portion. And that's Article 2, which is the limitations placed on the commissioner's ability to intervene and effectively overturn an outcome.
It can't be based on a missed call or a wrong call on the field. And it can't be at the behest of a club that was impacted by that. So, commissioner Goodell would have to, in his own independent judgment, determine that either we needed to replay the last minute and 49, or avoid it, and start from the beginning.
But the reality is, we're now 10 days out from the Super Bowl. In a $14 billion industry -- and, as Gunzelman mentioned a moment ago, it's the single most viewed Nielsen event on the calendar every single year.
CAVUTO: So, they're out of luck.
(CROSSTALK)
ELDRIDGE: You can't put the paste back in the tube.
CAVUTO: Gunz, he is right, and subsection whatever says that he's right.
GUNZELMAN: Right. Yes.
You can throw all the legalities you want at me. Bottom line is, this game's not being replayed, although that would be wild.
But the bigger issue is, there's no accountability to these referees. Neil, if any of us performed as terribly as these referees did, we would get fired. It's amazing that the two jobs that you can constantly screw up are being an NFL referee and a weatherman, and you don't get in trouble.
(CROSSTALK)
CAVUTO: They did everything else OK, right?
So, Ashley, I mean, there have been a lot of bad calls that happened. This one was overly egregious, I guess, because it tipped the outcome, but...
PRATTE: Well, there were two missed calls on this one, too.
CAVUTO: Oh, sure.
PRATTE: It was helmet-to-helmet and pass interference. So...
CAVUTO: By the way, the Patriots are not above questionable calls.
PRATTE: Whoa, whoa, whoa, whoa, whoa.
(LAUGHTER)
(CROSSTALK)
PRATTE: Leave them out of this one.
And I already have my beef with Roger Goodell. But I'm just going to say, if the Saints want to get back at the league, do what the Patriots did. Go on a redemption tour. And, look, it's been working for us ever since.
GUNZELMAN: Well, you're just happy as a Patriots fan that you're not playing the Saints. You got the Rams.
(CROSSTALK)
PRATTE: I admitted to that. I admitted to that. I do not want to play them, but we should be playing them.
(COMMERCIAL BREAK)
GUNZELMAN: Nobody cares about the Rams.
(CROSSTALK)
PRATTE: I jump in to defend Ashley here.
(CROSSTALK)
CAVUTO: I feel bad for the Saints here. And then the evil Patriots are involved. I'm going to hear from all the New England people.
(CROSSTALK)
PRATTE: I'm just happy it is not our team that's illegitimate this time.
(CROSSTALK)
PRATTE: Go, Jets. Let's go, Jets.
(CROSSTALK)
CAVUTO: Go, Jets.
(LAUGHTER)
CAVUTO: All right, thank you guys, very, very much.
We have a lot more coming up, including this shutdown showdown that now has protesters showing up everywhere -- after this.
(COMMERCIAL BREAK)
CAVUTO: All right, this is on Capitol Hill. I don't believe this is live.
Just a few moments ago, though, protesters, federal government workers, most of them furloughed and not getting paid, and for the second paycheck in a row as of tomorrow, Friday, I believe, still not getting paid, and they don't know what to do.
Virginia Democratic Senator Mark Warner joins us. He represents a lot of those furloughed workers right now. He joins me from actually a brewery in Alexandria, Virginia, after meeting with the brewery founder and federal employees impacted by the shutdown.
What is the brewery connection, Senator? Welcome.
SEN. MARK WARNER, D-VA: Well, Neil, thank you for having me.
And the brewery's connection is, they have got -- every time they put out a new brew, they have got to get a federal approval. So they have got about a half-dozen new beers they want to bring to market, and they can't get the approval to do that.
We also had a restaurant owner, owns four restaurants in Alexandria. And, again, we have got a lot of federal workers. Their business is down 50 percent.
And one of the questions I would ask -- I asked all the camera guys who were here, I mean, how many of them would show up five-and-a-half weeks in if you worked for a private business, and you still weren't getting paid, and had no certainty of when you were going to get paid in the future?
Because I think we have focused on the federal workers who are drawing down -- paying tax penalties, drawing down their IRA, or going against their credit card accounts, but the small contractors will never get repaid, all the private businesses who support around national parks and others never going to get any payback.
Lisa Murkowski had...
(CROSSTALK)
CAVUTO: No, you're right. This is getting idiotic right now.
And I'm glad you mentioned contractors, because they're...
WARNER: It's idiotic.
CAVUTO: They don't have anything to forward to. No check is coming backdated for them.
(CROSSTALK)
WARNER: We're trying to get them at least some -- we're trying to get them, at least for the low-paid ones, some reimbursement.
(CROSSTALK)
CAVUTO: But it doesn't look like we're any closer to resolving this, Senator.
And I'm wondering, given the fact that Nancy Pelosi today said, no, Mr. President, I don't think it's a good idea for you to give a State of the Union address, the president responding he has canceled it in the well of the House, might go someplace else, do you think this is now just out of control, petty and crazy?
WARNER: Well, first of all, I didn't hear any of the workers who, frankly, had anywhere in their top 10 concerns when and where the president gives the State of the Union.
So, being involved -- I'm going to leave that to those folks on that tit for tat.
What I believe in is, let me be clear. And I know we got a lot of the president's supporters watching you. I'm all for a valid negotiation.
(CROSSTALK)
CAVUTO: I'm not so sure about that. I'm not so sure about that, Senator, whether they're watching, but go ahead.
(CROSSTALK)
WARNER: Neil, Neil, all right.
But, listen, but let me just say, I know we're going to have to add additional border security.
CAVUTO: Right.
WARNER: But what we ought to do, particularly as we go into this second pay period where folks aren't going to get a check, February 1, when folks are going to lose their home, or can't meet their student debt, or have their car repossessed, I think we ought to go ahead, reopen the government for three or four weeks, whatever the president agrees to, get these folks back on.
And then I will take -- there will be increased border security.
(CROSSTALK)
CAVUTO: I understand what you're saying.
When Nancy Pelosi says that off the table in such discussions is ever providing funding for a wall -- and I had Steny Hoyer here yesterday, her number two, saying he doesn't have a problem with a wall, per se. She calls it immoral.
What is it -- is a wall immoral to you?
WARNER: Listen, Neil, we have got about 700 miles of existing fencing.
Where folks say we need additional barrier protections, I'm all for it. Frankly, I think we ought to -- if we could agree on a number and give it to the experts to decide how to determine...
(CROSSTALK)
CAVUTO: You're open to that. She's not. So, it looks like there's a division among just Democrats, right?
WARNER: Well, no.
But, Neil -- but I think -- but here's what I would say. Oftentimes in the past, when there's been -- the House has been one area and the White House has been in another, the Senate -- I just got off a call with a lot of bipartisan senators.
We don't want to go through the exercise tomorrow, where we have got the president's take-it-or-leave it proposal, or, I would argue, the bill that 96 senators voted for in December.
But chances are, it's not going to go through as well. But if we can express enough...
(CROSSTALK)
CAVUTO: So, that's not going to work. But the Democratic measure isn't going to work.
How long you think this goes on, just gut call? We have to go, Senator. Your gut call.
(CROSSTALK)
CAVUTO: Real quick.
WARNER: But let me just express this. Let me just express this.
CAVUTO: Fast.
WARNER: If a group of us senators say, in both parties tomorrow, we're willing to look at additional border security, but don't keep these folks hostage, reopen the government a couple weeks, let's get this finished, and if we then can't get it done, shame on all of us.
CAVUTO: All right.
WARNER: But give the bipartisan group a shot.
CAVUTO: That's not so crazy, border security, wall. They're closer than we think.
Senator, thank you very, very much. Always good seeing you.
Sorry to jump on him for the time, but that's because "The Five" is coming in four, three, two, one.
Content and Programming Copyright 2019 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2019 ASC Services II Media, LLC. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of ASC Services II Media, LLC. You may not alter or remove any trademark, copyright or other notice from copies of the content.
Get all the stories you need-to-know from the most powerful name in news delivered first thing every morning to your inbox